Why Some Feel the Deck was Stacked for the Prosecution in HumCo's Public Defender Hiring

After a process that some perceive as deeply troubling, the Humboldt County Board of Supervisors announced Tuesday that it is tapping David Marcus, a Florida attorney, to be the county’s next public defender.

The three-month search to replace recently retired Public Defender Kevin Robinson, who packed up his briefcase in December, caused controversy in local defense attorney circles because of its reliance on input from a prosecutor, police and others who traditionally find themselves in adversarial courtroom roles with the public defender’s office. And the hiring of Marcus seems unlikely to allay the concerns of some who believe the county stacked the deck.

“It’s absolutely appalling,” said Arcata defense attorney Jeff Schwartz about the makeup of the panel, which included District Attorney Maggie Fleming, Undersheriff William Honsal and Probation Chief Bill Damiano but not a single defense attorney. “It’s the fox watching the hen house. It wasn’t a fair process. It’s a sad day for criminal justice in Humboldt County.”

Marcus’ last stint as a public defender in Lassen County was shrouded in controversy, a large part of it centering around what was perceived as an overly cozy relationship with the district attorney’s office.

If you look at national guidelines for public defense work, you’ll find that independence is a guiding principle. The American Bar Association lists “professional independence” as one of its core standards for criminal defense work and its single most important principle of public defense work.

The concept is integral to citizens’ constitutional protections, explained Ernie Lewis, executive director of the National Association for Public Defense, a 15,000-member national organization.

“The public defender stands between a person accused of a crime and all the mighty power of the state,” Lewis explained, adding that if a public defender loses his or her independence from the prosecutions’ office then the entire system is rigged against a defendant.

In Lassen County, a rural area home to about 32,000 people east of Redding where Marcus served as public defender from 2005 to 2011, some felt he failed to live up to this awesome responsibility.

Just prior to Marcus’ arrival in Lassen, his predecessor, Toni Healy, filed a legal challenge against Lassen County Superior Court Judge Ridgely Lazard, alleging he was biased and prejudiced against Healy and the public defender’s office. A visiting judge ultimately heard the case and ruled in Healy’s favor, finding “court records, transcripts of recorded arraignments, official transcripts, court minutes, sworn statements of defendants and others, all of which indicate that Judge Lazard actively prevented the public defenders from properly representing clients entitled to representation,” according to an Aug. 23, 2011, story in the Lassen County Times. The decision disqualified Lazard from hearing any cases involving the public defender’s office but, just about a year after taking over Healy’s job, Marcus agreed to let Lazard once again preside over those cases.

Marcus later sparked a controversy by contracting with out-of-state defense investigators, telling the Lassen County Board of Supervisors he did so because the district attorney’s office felt local investigators in Susanville lacked credibility. Local investigators were outraged.

“The public defender seems to have lost sight of the fact that his office’s primary responsibility is to assist public clients and not facilitate the district attorney’s prosecutions,” one local investigator, Ron Wood, told the board of supervisors, according to a 2011 report in the Lassen County Times. “Why should the district attorney be consulted concerning the hiring of the public defender’s investigators? The truth is a less than rigorous public defense investigator benefits the district attorney but doesn’t always serve the public or justice.”

The dissension surrounding Marcus extended beyond his relationship with prosecutors. In its 2010-2011 report, the Lassen County Civil Grand Jury issued a scathing report on Marcus, saying he “appears to only spend an estimated 30 to 40 percent of the day at work.” Further, the grand jury alleged Marcus was not actively engaged in the office’s caseload other than handling felony preliminary hearings. The report also alleged that Marcus used funding allotted by the board of supervisors for continuing education for his office solely on himself, forcing his deputy public defenders to pay out of pocket to attend trainings, seminars and courses to keep them abreast of changes in the law and developments in legal theory.

The Lassen County Times reported that Marcus left the county’s employment to become the CEO of a dental lab company in Virginia. It’s unclear how long he stayed in that job, or what exactly he’s been up to since. The California State Bar website lists his practice’s address as a residence in Jacksonville, Florida. The answering machine there indicates the place is his family home, and makes no mention of a legal practice. Marcus did not return multiple messages left by the Journal in recent days, and we couldn’t find any indications online as to what he’s been up to since leaving Lassen County in 2011, other than settling in Jacksonville.

While Marcus’ resume likely only adds to concerns about the county’s hiring process, many maintain it would have been flawed no matter its outcome.

Robinson, now retired, said he was “somewhat aggravated” to learn a panel consisting of Fleming, Honsal, Damiano and representatives from Child Welfare Services and the county Department of Health and Human Services would be advising supervisors on hiring his replacement. Robinson — who is widely respected both as a defense attorney and for the public defender’s office he built up — said he was not consulted and, instead, actively reached out to the board to give his unsolicited input. He told the Journal back in October that he would recommend Greg Elvine-Kreis, his office’s supervising attorney and the current interim public defender, as his successor. Elvine-Kreis and Deputy Public Defender Kaleb Cockrum reportedly joined Marcus as the three finalists for the job.

Humboldt County Human Resources Director Dan Fulks said he personally put the interview panel together, dubbing it a “subject matter experts” panel. “These are subject matter experts, these are people that have dealings with the public defender on an ongoing basis,” he explained. Asked why there wasn’t anyone from the defense side of the courtroom involved, Fulks said he felt it would have been impractical to get a private defense attorney to take a day off work to sit through interviews.

But the county has done just that in the past. Local attorney Patrik Griego said he has happily served on two hiring panels for the county — one for a defense investigator and another for an office manager for the public defender’s office — including one about two years ago. Griego added that he did decline a panel invite in September of 2016 due to a planned vacation. He was not invited to participate in the public defender hiring process. “Private attorneys are willing to do this and have at least as much time as the DA to do this work,” Griego said.

Fulks said both the “subject matter expert” panel and the Board of Supervisors interviewed a batch of finalists culled down from the initial 19 applicants for the post. Then, Fulks said, the supervisors got a chance to meet with the other interview panel and “seek input on their viewpoints on the candidates.”

He disputed the notion that a panel laden with a prosecutor and law enforcement officers may have skewed the process. “They’re independent,” Fulks said of the supervisors. “You don’t tell the board what to do. They heard what they heard and made their own decisions from that.”

Supervisors Estelle Fennell and Mike Wilson declined to comment for this story when reached prior to Tuesday’s announcement of Marcus’ hire, noting the process was conducted in closed session. In an email, Supervisor Virginia Bass said the board had an “excellent pool” of candidates to choose from and dismissed the notion that there was any bias among members of the advisory panel.
“I believe that all members of the panel recognized how important the position of public defender is and put any adversarial bias aside,” she wrote, adding that after the interviews the panel members “spoke of the pros and cons they felt each candidate possessed based upon their interviews and provided us with a non formal ranking.”

Bass said "passion, integrity, professionalism, flexibility" and "an ability to think outside the box" were the most important qualities she was looking for in the county's next public defender, emphasizing "passion" as the most important.

For his part, Lewis, who directs the National Association for Public Defense, said there’s little uniformity across the nation in how public defense is provided, much less in how public defenders are hired. But he said there are standards — including that a hiring panel should never have a sitting judge or prosecutor included on it. Sometimes that standard is ignored, such was the case when a controversy erupted in San Diego County in 2009 when a sitting assistant district attorney sat on a public defender hiring panel, joined by probation officials, representatives from the superior court, a law professor and others.

But, Lewis said, Humboldt County’s panel being filled with people who “have an incentive to select a weak chief public defender” is “nothing like what we see across the country.”

“I’ve never heard of an advisory committee so skewed toward law enforcement,” Lewis said.

Editor's note: This story was updated from a previous version to include the comments of Patrik Griego.